Liability of Design-Builders for Design, Construction, and Acquisition Claims (2015)

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22 otherwise, including but not limited to losses of use, profits, business, reputation or financing. The exclusion referenced in Section 10.4.2 specifi- cally notes that the consequential damages waiver is not intended to affect the payment of liquidated damages, which include some damages that might be considered consequential. Numerous cases have considered the enforceabil- ity of LoL and consequential damages waiver clauses. Some of these are discussed in Section VI. IV. PROCUREMENT AND CONTRACT ADMIN- ISTRATION ISSUES AFFECTING DESIGN AND DESIGN LIABILITY Industry literature is rich with studies that address practices for procuring and executing design–build transportation projects. This section will highlight four areas that can impact design and design liability: • Design content in the procurement documents. • Design review processes. • Contractual approaches to differing site condi- tions. • Alternative technical concepts (ATCs). Liability issues that arise from each of these areas are discussed in other sections, particularly Sections III (contract clauses), V (acquisition), and VI (design–build case law). The purpose of this sec- tion is to offer insight into some state transportation agency practices in the above areas and how these practices may create liability. A. Design Content in Procurement Documents As noted in Section III, public owners commonly use disclaimers in design–build contracts in an attempt to absolve themselves from liability for information they furnished to proposers during the procurement process. The case law in Section VI explains that general disclaimers are ineffective in shifting this risk, and that the Spearin doctrine remains applicable in design–build. Many industry leaders recognize this principle, as evident in the fol- lowing quotation from the U.S. Army Corps of Engi- neers design–build guidance document: [M]ost Government design–build contracts contain some or a lot of “prescriptive” design criteria, which often restrict the design–builder’s flexibility and choices in meeting the owner’s defined needs, and sometimes even prescribe the required design solution. There is case law confirming that the Government must accept the respon- sibility for the adequacy of design criteria furnished to the design–builder, including partially completed designs. In that event, the design–builder’s liability should generally be limited to 1) the reasonable standard of the industry, based on breach of the standard of care of the industry, and/or 2) failure to comply with the owner’s design criteria.77 Given that an owner can incur liability for pro- viding proposers with faulty design criteria, it is important for the owner to carefully evaluate how far the design should be advanced before starting a design–build procurement. Generally speaking, the more design the owner undertakes, the greater is the opportunity for that design to have conflicts or ambiguities that would create a claim by the design–builder. If an owner were only concerned about liability, it could simply provide performance specifications and require the design–builder to develop a design meeting those specifications. Most owners, how- ever, are interested in more than liability transfer. Many would like to have control over specific ele- ments of the design process. This is particularly true on transportation projects, where a fair amount of technical detail must be performed before design–build procurement can begin to achieve clearance under the National Environmen- tal Policy Act of 1970 (NEPA)78 and other permit- ting requirements. National Cooperative Highway Research Pro- gram (NCHRP) Synthesis 376: Quality Assurance in Design-Build Projects (NCHRP Synthesis 376)79 provides valuable insight on quality-related issues, including the appropriate level of design for design–build procurement. Stating that the procurement process is the “point of greatest influ- ence on overall project quality,” the synthesis observes that: A clearly defined scope of work in the RFP is one of the most important factors in achieving the desired level of quality on a DB project. The scope must include both design criteria for the design work that will be completed by the DB team as well as preliminary design completed by the DOT or its preliminary design consultant to convey to the design–builders the design intent, scope of work, and other parameters of the project. Without a well- defined scope, the owner greatly increases the likelihood of nonresponsive proposals.80 77 Guidance for Firm Fixed-Price, Design–Build Con- struction Contracts 516 (U.S. Army Corps of Engineers, 2005). 78 Pub. L. No. 91-190, 83 Stat. 852, codified at 42 U.S.C. §§ 4321–4335. 79 DouglAs D. grAnsberg, keiTh r. molenAAr & Joseph n. DATin, QuAliTy AssurAnce in Design–builD proJecTs (NCHRP Synthesis 376, Transportation Research Board, 2008). 80 Id. at 33.

23 It further stated that the level of design development that is included in the RFP is vital in conveying the scope of work and is dependent on the amount of innovation the owner would like to encourage for a given project. Designs that are nearly complete do not give design–builders adequate room to innovate, whereas designs that are not clearly defined make pricing the proj- ect difficult and risky.81 The synthesis cited several studies that showed levels of procurement design ranging from 5 per- cent to 40 percent, with the average level of design prior to design–build contract award being 27 per- cent.82 Its overall conclusion in looking at different transportation agency approaches to preliminary design development was that “there is not a ‘one- size-fits-all’ level of design in DB. Each project must be individually evaluated to determine the optimal level of design and gain the maximum ben- efit from using the DB delivery method.”83 The syn- thesis also states: Scopes that are too narrow do not allow design–builders the opportunity to provide innovative solutions to the design problem (citations omitted). Thus, a major benefit of DB is lost. Furthermore, the owner unintentionally retains a much larger portion of the design risk than nec- essary. The rule of thumb on design content is that if there is only one technically acceptable design solution for a given feature of work, the DOT should prescriptively spec- ify it. If there is more than one acceptable solution, then the DOT could utilize performance criteria and/or perfor- mance specifications.84 Other studies support the conclusions in NCHRP Synthesis 376. The Federal Highway Administra- tion’s (FHWA) 2005 Design–Build Effectiveness Report states: The level of preliminary design that should be completed before a design–build contract is procured depends on the size and complexity of the project, the ability of the design– builder to develop a more cost-effective and constructable project design in a timely and competent manner, the degree to which performance specifications are used for the project, and the opportunity to gain valuable design capa- bilities, with earlier value engineering and constructability reviews as part of the process.85 Subsequently, FHWA issued two recommenda- tions, each of which relate to the effectiveness of design–build and the liability issues that arise from it: To the extent practical, contracting agencies should provide for flexibility in the design criteria by using performance criteria to encourage creativity by the design–build propos- ing teams while providing a basis to hold the team account- able for project results. . . . Preliminary designs that are incorporated in the RFP should be no more than 30 percent complete, dropping to lower levels as the size and complexity of the project increases and the contracting agency gains greater experi- ence with this project delivery approach and the use of performance-based specifications.86 Another supportive study was conducted by the American Road and Transportation Builders Asso- ciation (ARTBA) and is described in its monograph, Suggested Best Practices for Design–Build in Trans- portation Construction.87 Both NCHRP Synthesis 376 and the FHWA Design-Build Effectiveness Report support the use of performance specifications in design–build. Although it is beyond the scope of this digest to discuss the administrative issues associated with their use,88 it is worthwhile to note that industry literature pro- vides examples of performance specifications being used with virtually no prescriptive language.89 Readers should note that a number of transporta- tion agencies have incorporated a “basic configura- tion” concept in their contract documents to address the lack of flexibility and risk of errors associated with the relatively high level of design required to obtain NEPA approval. An example of this approach can be seen in TxDOT’s design–build contract for 81 Id at 34. 82 The synthesis cited the FHWA Design–Build Effec- tiveness Study, discussed below, in reaching this conclu- sion. Id. at 39. 83 Id. at 35. 84 Id. at 34. 85 feD. highwAy ADmin., Conclusions and Recommenda- tions, in Design–builD effecTiveness sTuDy 215 (2006), available at http://www.fhwa.dot.gov/reports/designbuild/ designbuild0.htm (last visited June 29, 2015). 86 Id. 87 That monograph states: “Well advanced designs hinder innovation and limit a DB Team’s ability to tailor a design to suit competitive means, methods, and equipment. Overly prescriptive design specifications and plans (‘draw-build’) are discouraged. These greatly reduce the potential for innovation, and serve only as an improper transfer of design risk away from the originator onto the DB Team without commensurate resources to manage.” (P. 10.) 88 The administrative issues associated with the use of performance specifications on design–build projects are treated in detail in michAel c. loulAkis, legAl AspecTs for performAnce-bAseD specificATions for highwAy con- sTrucTion AnD mAinTenAnce conTrAcTs (Nat’l Cooperative Highway Research Program, Legal Research Digest No. 61, Transportation Research Board, 2013). 89 Consider the repair of the Interstate Highway 10 bridge over Florida’s Escambia Bay after Hurricane Ivan. Within 48 hours of the hurricane, FDOT adver- tised and awarded a $26.4-million contract to reopen the highway using temporary bridging. The solicitation used “FDOT’s standard form with 7 pages of hand-writ- ten ‘assumptions and clarifications.’” The assumptions and clarifications were developed during a face-to-face meeting with four competing design–builders. This was cited in Brian Blanchard, Design-Build Lessons Learned Florida DOT, proceeDings, louisiAnA TrAnsporTATion engineering conference 6–14 (2007).

24 the U.S. 181 Harbor Bridge project.90 The Harbor Bridge contract contains provisions restricting the design–builder from making material changes to the “Basic Configuration” without owner approval, but also provides that, if the basic configuration is not constructible, the owner will pay the design– builder’s costs for fixing the problem. This serves the purposes of: • Allowing proposers to rely on basic elements of the preliminary design in estimating the job. • Giving the owner the ability to require the design–builder to conform to specified requirements. • Giving the owner the ability to share in any cost savings associated with major changes in the basic configuration. • Allowing the design–builder flexibility to use an alternative design approach for non-basic con- figuration elements (subject of course to environ- mental and other constraints), thereby reducing the risk of claims related to errors in those ele- ments of the preliminary design. • Enabling the design–builder to incorporate minor changes in basic configuration as part of the design process. B. Design Reviews The design review process for design–build proj- ects raises fundamental questions for owners, par- ticularly in terms of whether owners are willing to give up some control and make a “culture shift” in the mechanics of a design review.91 The response to this question is particularly significant for schedul- ing, as “design activity is always on the critical path” of a design–build project.92 Many of the cases dis- cussed in Section VI involve disputes based on design–builder complaints that were impacted by actions the owner took during the design review and approval process. They show that concerns regard- ing design reviews are practical, not theoretical. As a result of this, transportation agency deci- sions regarding design reviews reflect competing considerations. On the one hand, many transporta- tion agencies would like to limit potential delay claims by reducing the number of “hold points” in the design review process and limiting potential claims for which an agency is liable for design flaws because it directed the project to be designed in a particular way. On the other hand, transportation agencies want to ensure that the project design will meet its requirements and will not result in later tort claims based on design defects. NCHRP Synthesis 376 provides insight into transportation agency practices on design reviews and identifies three main trends in formal design review processes: • No formal review before final (release-for-con- struction) design review. • One review before the final design is released for construction. • Multiple reviews before the final design review. It also noted that in many instances the contract encourages the design–builder to request informal reviews that would allow the transportation agency to provide more frequent input to ensure that the final design would meet the contract requirements. Often called “over-the-shoulder” or “oversight” reviews, these processes have the benefit of allowing transportation agency input without requiring the design–builder to wait for formal comments. NCHRP Synthesis 376 found that 15 percent of the projects it analyzed did not have any formal design review process prior to the transportation agency’s receipt of final design documents. For example, the Minnesota Department of Transporta- tion (MnDOT) used the following design review approach in one of its RFPs: The Department will participate in oversight reviews and reviews of early construction as part of its due diligence responsibilities. If the Department, in its review, observes that the Design–Builder is not complying with contract requirements and/or that the QC/QA checks are not com- plete, it will notify the Design–Builder in writing that con- struction may not proceed until the noted items are cor- rected. The Department’s oversight review and comments will not constitute approval or acceptance of the design or subsequent construction.93 The synthesis noted that 56 percent of the proj- ects analyzed required only one formal design 90 The term “Basic Configuration” is defined as: (a) the Schematic ROW; (b) the components of the Schematic Design set forth in Section 1.2 of the Tech- nical Provisions; (c) the number and type of lanes set forth in the Schematic Design; (d) the approximate location of New Harbor Bridge pylons as set forth in Attachment 13-2 to the Technical Provisions; (e) the approximate location of ramps as set forth in the Sche- matic Design; and (f) the approximate location and type of interchanges as set forth in the Schematic Design. 91 JAmes e. koch, DouglAs D. grAnsberg & keiTh r. molenAAr, proJecT ADminisTrATion for Design–builD: A primer for owners, engineers, AnD conTrAcTors (2010). 92 Chris Gauer, Design and Construction of Southeast Anthony Henday Drive, Edmonton, 4, Transportation Association of Canada (2006), available at http://conf.tac- atc.ca/english/resourcecentre/readingroom/conference/ conf2006/docs/s015/gauer.pdf (last visited June 29, 2015). 93 DouglAs D. grAnsberg, keiTh r. molenAAr & Joseph n. DATin, QuAliTy AssurAnce in Design–builD proJecTs 48 (Nat’l Cooperative Highway Research Program, Synthe- sis 376, Transportation Research Board, 2008). The cited project was Part I: Scope of Work T.H. 100–Duluth St. S.P. 2735-172, Design–Build Request for Proposals, Minnesota Department of Transportation, St. Paul, 2001.

25 review before the final design would be “released for construction.” This gives the transportation agency an “intermediate point at which to verify that the design development is proceeding in accordance with the contract requirements and to ensure that it is progressing according to the schedule.” The syn- thesis offered an example from a Mississippi Depart- ment of Transportation (MDOT) project: The CONTRACTOR will prepare and submit a single pre- liminary design submittal for the entire project. Prelimi- nary design shall include roadway plan and profile, bridge type, selection layout, drainage, erosion control, signing, architectural and traffic control plans. MDOT will review Preliminary Design Submittals within 21 Days of the submittal.94 Finally, the synthesis found that roughly 30 per- cent of the analyzed design–build RFPs required more than one official owner review prior to releas- ing the design for construction. For example, the Maine Department of Transportation (MaineDOT) required that formal design package submittals be made at the 50 percent and 80 percent design devel- opment stage of any design package intended to be released for construction. It defined the term “released for construction” to mean, in general, those design documents that the design–builder’s engi- neer-of-record reviewed, approved, and certified as being ready for construction. The MaineDOT also included an “early release for construction” (RFC) design review process, described as follows: The Design–Builder has the option to RFC design plans for a particular bridge element. Early release can be for driving piles, constructing the footings and or foundation, and sub- mission and approval of the superstructure in order to meet procurement schedules. The Early Release process requires submission of the design plans of the particular bridge ele- ment, associated computations, and QC/QA documenta- tion…and a description of the elements to be released. The plans and computations shall be sealed by a Maine Licensed Professional Engineer. Plans should note that they repre- sent an early release submittal and shall identify exactly what element is to be released. Any items shown on the design plans that are not to be RFC shall be clouded and cross-hatched within the clouds.95 This early release process allows the contractor to begin actual work before the entire design is com- plete, reviewed, and approved. Related to the early release process is the ques- tion of what happens if the design is changed from the assumptions used to develop the early release construction documents. Most agencies address this directly in their contracts and indicate that the design–builder is proceeding at its own risk if it chooses to begin construction before its designer-of- record has obtained an approved submittal.96 NCHRP Synthesis 429 found a number of “over- the-shoulder” review processes in its content analy- sis. It noted that MnDOT uses them as the primary mechanism to provide input during the design pro- cess. MnDOT describes the process as: “The over- the-shoulder reviews are not hold points that restrict the progress of design…they are simply reviews of the design as it progresses and opportunities for MnDOT to provide comments and feedback on the design.”97 The Arizona Department of Transporta- tion (ADOT) follows a similar procedure that it describes as follows: “Over-the-shoulder-reviews are performed while the design is being developed. They are proactive in nature, informal, interactive, and intended to catch omissions and oversights that may lead to a major redesign of the work.”98 As discussed in Section VII, at least one state (California) requires a certain level of design review for the government to be able to rely on the “design immunity” exemption under applicable tort claims laws. Regardless of the number of design reviews undertaken, many owners are concerned that, by approving the design produced by its design–builder, the owner may thereby assume some type of liabil- ity for the design. As noted in Section III, this is often addressed directly in the contract, where the owner’s action on a submittal will not be deemed to transfer liability away from the design–builder. Applicable case law also indicates that this should not be a major concern from a legal standpoint. 94 Id. at 48, quoting from Request for Proposals, Addendum 1, A Design–Build Project Bridge Replace- ment on US 90 Over St. Louis Bay, Hancock and Harrison Counties, Mississippi, Project No. ER/BR-0003-01(098) 104555/301000—US 90 St. Louis Bay Bridge Replace- ment, Mississippi Department of Transportation (2005). 95 Id. at 50, citing to Request for Proposals, I-295 Commercial Street Connector, FHWA Project No. IMD- 7589(300); MDOT Project No. 7589.30, Maine Department of Transportation (2003). 96 See, e.g., inTermoDAl TrAnsporTATion Division, ArizonA Dep’T of TrAnsp., Design–builD procuremenT AnD ADminis- TrATion guiDe (2d ed. 2001). 97 DouglAs D. grAnsberg AnD michAel c. loulAkis, geo- TechnicAl informATion prAcTices in Design–builD proJ- ecTs (National Cooperative Highway Research Program, Synthesis 429, Transportation Research Board, 2012), available at http://onlinepubs.trb.org/onlinepubs/nchrp/ nchrp_syn_429.pdf (last visited June 29, 2015), biblio. ref. Minnesota Department of Transportation (MnDOT), Addendum 5, Project Management Book 2B, Trunk High- way 52 Oronoco Design–Build Project (2005). 98 Id., citing to inTermoDAl TrAnsporTATion Division, ArizonA DepArTmenT of TrAnsporTATion, Design–builD procuremenT AnD ADminisTrATion guiDe 23 (3d ed. 2007), available at https://www.azdot.gov/docs/default-source/ construction-group/designbuildguide.pdf?sfvrsn=0 (last visited July 1, 2015).

26 A much more significant concern, however, relates to the possibility that the owner may direct changes in the design through the design review process, thereby opening the door to delay claims as well as claims for additional costs associated with the design change. This risk can be managed by contrac- tual limitations on the scope of the design review, such as providing that the design review is limited to a check for compliance. If the owner wishes to retain greater rights to provide review comments, it may wish to include provisions in the contract that detail the process to be followed with respect to any comments that the design–builder believes consti- tute a change in the contract requirements. For example, the contract for TxDOT’s U.S. 181 Harbor Bridge project includes provisions that require the design–builder to “undertake reasonable efforts to accommodate or otherwise resolve” all comments provided by TxDOT, but also makes it clear that a change order is required if such comments result in a change in the underlying contract requirements.99 C. Contractual Approaches to DSCs NCHRP Synthesis 429: Geotechnical Informa- tion Practices in Design-Build Projects (NCHRP Synthesis 429)100 reviews how state transportation agencies use geotechnical information in solicita- tion documents and contracts for design–build highway projects. It examines current practices regarding the allocation of geotechnical risk and the level of geotechnical information provided with bid documents, the scope of geotechnical informa- tion required after contract award, geotechnical- related performance testing during construction, and contract provisions related to geotechnical design and construction. The synthesis concluded, among other things, that geotechnical uncertainty is always high until the post-award site investigation and the completion of the geotechnical design report. Because geotechnical and site engineering is the first major design pack- age and the one with the highest preaward uncer- tainty, it must be completed as expeditiously as pos- sible. To accomplish this, the synthesis recommended that transportation agencies use expedited design review and acceptance procedures that may include one or more of the following techniques, each of which was discussed in the preceding section: • Restricting the transportation agency to a sin- gle interim design review before final release for construction review. • Maximizing the use of formal and informal over-the-shoulder design reviews. • Permitting the release of geotechnical design packages for construction before the remainder of the design is complete. It also recommended that explicit differing site conditions (DSC) clauses be used, as well as other “risk sharing clauses that quantify the design– builder’s exposure to geotechnical risks, with the DOT assuming everything above that threshold.”101 The basic premise of a DSC clause is to give a contractor cost and time relief for: • Subsurface or latent physical conditions encountered at the site that differ materially from those indicated in the contract. • Unknown physical conditions at the site of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract. The courts have been highly protective of a con- tractor’s ability to obtain relief under this clause, as is evident by the discussion in Sections III and VI regarding disclaimers of geotechnical information furnished by the owner. Substantial literature discusses the policy and ben- efits of a DSC clause. One leading case is Foster Con- struction v. United States,102 where the court provided a clear explanation of the DSC clause’s purpose: The purpose of the changed conditions clause is thus to take at least some of the gamble on subsurface conditions out of bidding. Bidders need not weigh the cost and ease of mak- ing their own borings against the risk of encountering an adverse subsurface, and they need not consider how large a contingency should be added to the bid to cover the risk. They will have no windfalls and no disasters. The Govern- ment benefits from more accurate bidding, without inflation for risks which may not eventuate. It pays for difficult sub- surface work only when it is encountered and was not indi- cated in the logs.103 NCHRP Synthesis 429 noted that, although FHWA mandates the use of a DSC clause for fed- eral-aid highway projects (unless the use of such a clause is contrary to state law), it does not have the same mandate for design–build projects. “Instead, it encourages state DOTs to use this clause when appropriate for the risk and responsibilities that are shared with the design–builder.”104 Notwithstanding 99 Texas Dep’t of Transp., Comprehensive Development Agreement for U.S. 181 Harbor Bridge Replacement Proj- ect § 4.1.7(b), RFP Addendum No. 6, at 62 (2015), avail- able at http://ftp.dot.state.tx.us/pub/txdot-info/spd/cda/ us181-harbor/rfp/addendum-6/cda.pdf (last visited June 29, 2015). 100 NCHRP Synthesis 429. 101 Id. at 2. 102 193 Ct. Cl. 587, 435 F.2d 873 (1970). 103 Id. at 614, 435 F.2d at 887. 104 NCHRP Synthesis 429, at 3

27 this, the synthesis noted that in the past several years, more public owners have decided that it is in their best interests to accept the risk of DSCs on design–build projects, and therefore use DSC clauses in their design–build contracts. This is due, in part, to the fact that design–build contracts are typically awarded before a thorough subsurface investigation is completed and a geotechnical design report is developed, making it difficult to mitigate this risk during procurement. Although the policy behind the DSC clause is to eliminate some of the risk from bidding, transpor- tation agencies have, particularly on larger design–build projects, used contract provisions that shift significant risk to the design–builder. According to NCHRP Synthesis 429, WSDOT uses this approach. It quotes a WSDOT survey respon- dent who stated: “We [assign] all changed condi- tions under a certain dollar amount (different amounts for different contracts) to the contractor’s risk. If that threshold is exceeded, then the depart- ment pays for the costs above the threshold.” For example, on the SR 520 Pontoon Construction design–build project, WSDOT used the following language in its DSC clause: Notwithstanding the above, the Design–Builder shall be entitled to equitable adjustment adjusting the Contract Price only for the actual, reasonable cost increase resulting from Differing Site Conditions which in the aggregate exceeds $10,000,000.00. The responsibility for the first $10,000,000.00 worth of Differing Site Conditions shall rest solely with the Design–Builder.105 During procurement, WSDOT received a request for information from a proposer, which stated that the $10 million cap was extraordinary and could result in large proposal contingencies. It asked WSDOT to reconsider this provision. WSDOT declined, stating: Establishing a threshold dollar amount for Differing Site Conditions accomplishes the following: 1) It provides a level of cost certainty for the owner, 2) It provides a level playing field by limiting the liability of the Design–Builder, and 3) Encourages the Design–Builder to develop strategies to limit risks associated with Differing Site Conditions. Provid- ing a threshold dollar amount for Differing Site Conditions has been used successfully on all WSDOT design–build proj- ects to date. The $10,000,000 threshold for this project is consistent with another WSDOT design–build project of this size and complexity (Tacoma Narrows Bridge).106 In essence, WSDOT put proposers on notice that it was willing to pay the $10 million contingency that a prudent design–builder would include in its lump sum price proposal. The clause effectively insulates WSDOT from being “nickeled and dimed to death” with minor DSC claims during the proj- ect’s execution. D. Alternative Technical Concepts (ATCs)107 FHWA’s Construction Program Guide defines an ATC as “suggested changes submitted by proposing teams to the contracting agency’s supplied basic configurations, project scope, design, or construction criteria. These proposed changes provide a solution that is equal to or better than the requirements in the RFP document.”108 If the ATC concept is accept- able to the contracting agency, it may be incorpo- rated as part of the proposing teams’ technical and price submittal, enabling flexibility to the proposers in order to enhance innovation and achieve effi- ciency. The use of ATCs on design–build federal-aid projects is governed by 23 Code of Federal Regula- tions (C.F.R.) 636.209(b). Many industry publications extoll the benefits of ATCs on design–build projects. NCHRP Synthesis 429 found that they can facilitate the geotechnical design development process by enhancing commu- nication during the proposal preparation phase of the project. It recommended that an owner use: 1) confidential one-on-one meetings to clarify an RFP intent and to allow presentation of potential ATCs, and 2) confidential preapproved ATCs to enhance innovation in geotechnical design and subsurface construction means and methods.109 NCHRP Synthesis 455: Alternative Technical Concepts for Contract Delivery Methods (NCHRP Synthesis 455)110 provides a comprehensive discus- sion of ATCs. Chapter 2 of this synthesis includes a discussion regarding the legal issues relating to the ATC process. These include legal consider- ations associated with: 1) maintaining confidenti- ality with respect to evaluation and discussion of ATCs while complying with open meeting and 105 SR 520 Pontoon Construction Design–Build Project Request for Proposals, Volume 1: General Provisions 194, Washington State Dep’t of Transp. (2009). 106 SR 520 Pontoon Construction Design–Build Proj- ect: RFP Questions and Answers No. 1, Washington State Dep’t of Transp. (2009), available at http://www.wsdot. wa.gov/biz/contaa/DESIGNBUILDCONTRACTS/SR 520BRIDGEREPLACEMENT/2009_0924_RFP_QA_1. pdf (last visited June 29, 2015). 107 ATCs are discussed in § III relative to their appli- cability to right-of-way acquisition and in § VI relative to liability considerations. 108 feD. highwAy ADmin., consTrucTion progrAm guiDe AlTernATive TechnicAl concepTs. Available at http://www. fhwa.dot.gov/construction/cqit/atc.cfm (last visited June 29, 2015). 109 NCHRP Synthesis 429, at 2. 110 DouglAs D. grAnsberg, michAel c. loulAkis & ghADA m. gAD, AlTernATive TechnicAl concepTs for conTrAcT Delivery meThoDs (NCHRP Synthesis 455, Transporta- tion Research Board, 2014) (hereinafter NCHRP Synthe- sis 455).